Orchestrating Settlement: A Symphony of Sound and Color

This fall I attended one of the outdoor concerts by the Los Angeles
Philharmonic Symphony at the Hollywood Bowl. It was a spectacular
affair—beginning with the wonderful sounds of classical music and ending
with a fantastic light show. The concert featured a local university
marching band as well as a guest appearance from a world renowned
cellist. As I listened to the symphony perform various movements, I
carefully observed the conductor. Each movement by the conductor was
precisely timed. Every direction to various sections of the symphony
had to be meticulously arranged to ensure that every note was played
exactly on cue. And yet, at the end of the magnificent concert and
beautiful light show, the smoke from the fireworks wafted through the
air—leaving the audience sitting in a cloudy haze.

In many ways, litigation is like a symphony.

There are many “movements”
or phases of litigation: the initial decision to file a lawsuit,
pre-trial pleadings and motion, seemingly endless discovery, settlement
negotiations, trial preparation, trial, post-trial motions, and possible
appeals. Through the course of litigation, there may be the occasional
“solo” when a defendant moves for summary judgment or when a plaintiff
seeks review by an appellate court on a decision the lower court issued
prior to a final judgment. There may also be times of prolonged
“silence” as may be the case when a judge issues a stay of proceedings.
Throughout the course of litigation, there are various moving pieces
that must be organized and coordinated so that everything falls into
place. And after years of litigation, sometimes the parties find
themselves in a cloudy haze with their needs unmet and desires
unsatisfied.

Often parties find the process of litigation unfulfilling. Whether the
parties go to trial or reach a settlement has a lot to do with the
“conductor” or the decision-makers.

Who is the Conductor in Litigation?

I think there are many viable answers to this question.

The Judge?

The judge in many ways dictates the course of the litigation. In
compliance with various code sections and local rules, the judge sets
deadlines and determines when hearings and trials will be set. The judge
can order mediation or other proceedings to encourage settlement. If
resolution is not reached, the judge will ultimately oversee a trial. A
judge or a jury will then decide the final outcome of the hearing.

The Client?

The client is inevitably a driving force in litigation. If the client
is the plaintiff, then he or she has chosen to use litigation as a means
to resolve the dispute. Although the attorney may offer litigation
strategy and advice, it is ultimately the client’s choice to decide
whether or not to settle.

The Attorney?

Attorneys play a large role in the litigation “symphony.” The attorney
must coordinate each step in each phase of litigation making sure to
meet discovery cut-off dates, attending status conferences, filing
motions for summary adjudication, and crafting a plan for trial.

The attorney listens carefully to the client’s story in order to clearly
determine the set of facts. The attorney researches the relevant law
and selects the appropriate arguments and defenses to raise. The
attorney preps the client for depositions and for various proceedings.
Attorneys also help their clients navigate the legal system. Offering
advice and providing various options, the attorney guides the client
through the decision making processes. It is the attorney’s role to
present the client with the likely success or failure each path.

An attorney also plays a pivotal role in presenting a client with
settlement options. The attorney’s knowledge of mediation and other
settlement mechanism is therefore vital to whether or not settlement is
reached. An attorney’s proclivity towards using the mediation process
as a vehicle for settlement will ultimately impact whether a mediation
is successful. An attorney can tell an uninformed client about the
mediation process and inform the client of its many benefits. An
attorney can prep the client for the session and encourage the client to
participate fully and wholeheartedly—maximizing the likelihood of
reaching resolution.

As an
attorney, I see the litigation process through the eyes of a Lawyer.
But, it seems to me that in orchestrating settlement, an attorney plays
the role of conductor. Although it is ultimately the client’s voice
that is heard, the attorney gives the client the instruments and tools
and guides the client in how to use those instruments.

Mikita is the Editor-in-Chief of ADR Times. She is also an attorney at Seastrom Seastrom & Tuttle focusing solely on Family Law . Before that, she worked predominantly in litigation and arbitration in the field of construction and business litigation insurance defense. She received her Juris Doctorate at Pepperdine and a Masters in Dispute Resolution from the Straus Institute. Mikita has been published in the Pepperdine Dispute Resolution Law Journal and worked at the Centre for Effective Dispute Resolution in London. As an avid traveler, she continues to explore various dispute resolution issues and how they vary from region to region.